The Court: How ‘So Few Have So Quickly Changed So Much’

At the end of his first Supreme Court term, in July 2006, Chief Justice John Roberts was interviewed by Jeffrey Rosen for a book on the Court. Roberts emphasized the aim of having the justices subordinate their individual preferences to an effort to achieve unanimity. “I think it’s bad, long-term,” he said,

if people identify the rule of law with how individual justices vote…. You do have to put [the justices] in a situation where they will appreciate, from their own point of view, having the Court acquire more legitimacy, credibility, that they will benefit from the shared commitment to unanimity…. People don’t want the Court to seem to be lurching around because of changes in personnel.

He added, Rosen wrote, that the example of Chief Justice John Marshall had taught him that personal trust in the chief justice’s lack of an ideological agenda was very important.

It is bewildering to read those words today. For in the Court’s subsequent term, the one that ended last June, the number of unanimous decisions dropped sharply. More than a third of the argued cases were decided by votes of 5–4, a modern record proportion. In many of the most important cases Chief Justice Roberts led the identical five-man majority, in which he was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. Eight of those decisions were radical departures from precedent. All moved toward a more conservative view of law and life.

What happened? In The Nine, Jeffrey Toobin gives us as thoughtful and convincing an answer as we are likely to get. It is a first-class book, making the Supreme Court and the forces that have moved it a fascinating story, and doing so without sacrificing accuracy. The subtitle made me think that I might be in for a gossipy work, suggesting that personal jealousies and conflicts shaped decisions. To the contrary, it is a serious book, whose fascination lies in its portrayal of how our fundamental law is affected by history, politics, and ideology. There are some behind-the-scenes stories, enjoyable ones; but the book’s achievement is its marshaling and analysis of matters that are not secret.

Toobin’s explanation of what happened in the most recent term of the Supreme Court goes back to the beginnings of the contemporary conservative political movement in the 1970s and 1980s: the movement that became the base of the Republican Party with its Christian evangelicals and advocates of low taxes. The most important spur was the 1973 Supreme Court decision in Roe v. Wade, establishing a constitutional right to abortion. To the “right-to-life” groups there was added the increasingly influential Federalist Society of law students and lawyers, founded in 1982, which urged conservative directions in the law. The common aims of the movement are summarized as follows by Toobin:

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